August 8, 2009
Federal Judicial Center Management Guides for MDL
The Federal Judicial Center has posted two guides for management of a multidistrict litigation: (1) Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges; and (2) Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Court Cerks. (H/t to Drug and Device Law.)
August 7, 2009
Lawsuit Growth in 2008
Articles in the ABA Section of Litigation's Litigation News and the Baltimore Business Journal summarize the 2009 Law360 Litigation Almanac. Among the federal-court findings: class actions rose 8% (reaching an all-time high); product liability litigation increased 20%; federal environmental lawsuits went up for the first time since 2005; and, in contrast, securities litigation dropped by 8%.
MTBE Trial in DSNY Ongoing
The New York Times reports that the City of New York's lawsuit against Exxon for water contamination with MTBE is ongoing in Queens. The MTBE multidistrict litigation is before Judge Shira A. Scheindlin of the Southern District.
Vytorin and Zetia Settlement
The New York Times reported yesterday that Merck and Schering-Plough have agreed to pay $41.5 million to settle class claims that they withheld the results of an unfavorable clinical trial. The clinical trial apparently linked Vytorin and Zetia to harmful side effects that included cancer. Of course, this news comes as both companies are in merger talks, which would make Merck the second largest pharmaceutical company in the world. The New York Times article is available here.
August 6, 2009
First Fosamax Trial to Begin Next Week
The first Fosamax trial is set to begin Tuesday in federal court in New York. Merck is facing about 850 lawsuits alleging that Fosamax, a widely used osteoporosis drug, increases the risk of osteonecrosis of the jaw (ONJ). Most of the cases have been transferred to multidistrict litigation before Judge John Keenan in the Southern District of New York. Over 100 other cases are pending before Judge Carol Higbee (who oversaw much of the Vioxx litigation) in New Jersey Superior Court. In the MDL, Judge Keenan has scheduled three cases to go forward as bellwether trials. Plaintiff Shirley Boles is set for August 11, Bessie Fleming for Dec. 1, 2009, and Karen Greene for Jan. 11, 2010.
Last week, according to a Bloomberg news report, Judge Keenan rejected Merck's motion for summary judgment on Boles' compensatory damages claims but he granted the motion as to punitive damages, so the Boles trial will go forward solely on compensatory damages.
Since this is the first trial in the Fosamax mass tort litigation, lawyers involved in Fosamax cases undoubtedly will be paying close attention both to see the other side's trial strategy and to see how a jury responds to the evidence.
Here are links to a Bloomberg report on the upcoming trial and the court's rejection of punitive damages, entries of July 24 and July 31 on AboutLawsuits.com, and a statement released last week by Merck putting its own spin on Fosamax and ONJ.
August 4, 2009
Did Iqbal (and Twombly) Transform Pleadings?
Most people think that Iqbal definitively put to rest the old "notice pleading" standard that we were all raised on. But I've found two dissenters: Adam Steinman has an article up on SSRN entitled "The Pleading Problem" and Robert Bone has an article entitled "Twombly, Pleading Rules and the Regulation of Court Access." Neither argue that nothing has changed, but both (in different ways) make the claim that the death of notice pleading has been greatly exaggerated.
It seems that Iqbal is spurring increases in dismissals of poducts liability cases (click on this link for an article in law.com about two recent dismissals). Maybe these cases can be read to be consistent with pleading requirements prior to 2008, but I'm skeptical.